HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 85 Case :- APPLICATION U/S 482 No. - 17371 of 2020 Applicant :- Mahendra Kumar Chaudhary And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Dr. Yogendra Kumar Srivastava,J. 1. The present case brings to the fore the legal conundrum relating to issues seemingly circumambient the interpretation of the provisions under Section 2(d) of the Code of Criminal Procedure, 19731 and the explanation appended to the section. 2. Heard Sri S.N. Mishra alongwith Sri Amit Kumar Singh, learned counsel for the applicants and Sri Vinod Kant, learned Additional Advocate General along with Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite party. 3. The present application under Section 482 of the Code has been filed seeking to quash the entire proceedings of Criminal Case No. 3412 of 2020 (State Vs. Mahendra Kumar Chaudhary and others), arising out of N.C.R. No. 75 of 2019, under Sections 323, 504 of the Indian Penal Code, 18602, Police Station Bakhira, District Sant Kabir Nagar including charge sheet dated 30.09.2019 as well as cognizance order dated 29.07.2020 passed by learned Judicial Magistrate, Sant Kabir Nagar. 4. As per facts of the case, pleaded in the application, proceedings of the Criminal Case No.3412 of 2020 (State Vs. Mahendra Kumar Chaudhary and Others) were initiated with the registration of NCR No. 75 of 2019, under Sections 323 and 504 IPC at Police Station Bakhira, District Sant Kabir Nagar. 5. Learned Additional Advocate General has taken instructions which indicate that an order under Section 155(2) of the Code was passed by the Magistrate directing investigation and pursuant thereto a "police report" under Section 173(2) of the Code dated 29.07.2019 was placed before the Magistrate upon which cognizance was taken on the same date. 6. The principal submission, which is sought to be raised to seek quashing of the proceedings, is that the complaint having been made in respect of non-cognizable offence and the police report also having been submitted with regard to non-cognizable offence, in view of the explanation to Section 2(d) of the Code, the police report shall be deemed to be a complaint and the case would be required to be proceeded with as a complaint case. In support of his submissions learned counsel places reliance upon the judgments in the cases of Ghanshyam Dubey @ Litile And Others vs. State of U.P. and Another3, Dr. Rakesh Kumar Sharma vs. State of U.P. and Another4 and Alok Kumar Shukla vs. State of U.P. and Another5. 7. Learned Additional Advocate General has controverted the aforesaid contention by submitting that the explanation to Section 2(d) of the Code would come into play only in a situation where to begin with the complaint which was lodged was in respect of a cognizable offence but after investigation the police report which was submitted disclosed a non-cognizable offence. He submits that in the present case where the proceedings were initiated pursuant to registration of an NCR in respect of non-cognizable offence, and the same was investigated upon an order passed by the Magistrate under Section 155(2) of the Code and the police report subsequent thereto disclosed non-cognizable offence, the explanation under Section 2(d) of the Code would not be attracted. To support his contention, learned Additional Advocate General has placed reliance upon the judgment of the Supreme Court in the case of Keshab Lal Thakur vs. State of Bihar6. 8. It has further been pointed out that looking at the nature of the offence disclosed in the police report, the case which is to be tried would be a summons case and the procedure prescribed for the same would be as per Chapter XX of the Code, wherein there is no distinction, with regard to manner in which the trial is to proceed, between cases instituted on a police report and those instituted otherwise than on a police report i.e. a complaint. It is accordingly, submitted that the present case being a summons case there would be no material change in the procedure of trial and as such the applicant cannot be said to have been prejudiced by the order of cognizance passed by the Magistrate. 9. As regards the judgment in the case of Ghansyam Dubey alias Litile (supra), it is submitted that the decision having been passed without considering authoritative pronouncement in the case of Keshab Lal Thakur (supra) and also the relevant statutory provisions, the same cannot be said to be a conclusive authority on the point. 10. In order to appreciate the rival contentions, the relevant provisions under the Code may be adverted to. "2. Definitions.--In this Code, unless the context otherwise requires,-- (c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.--A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; (h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf; (l) "non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant; (n) "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-Trespass Act, 1871 (1 of 1871); (o) "officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present; (r) "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173; (w) "summons-case" means a case relating to an offence, and not being a warrant-case; (x) "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years; 155. Information as to non-cognizable cases and investigation of such cases.--(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. 173. Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay. (1A) The investigation in relation to an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties;